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Law of Partnership. No. 2.- Amended Joint-Stock Companies Bill. council, vote upon any question in which such LAW OF PARTNERSHIP, No. 2. company is interested, or vote on or take part in the discussion of any matter in which he has directly or indirectly, by himself or his partner,

This Bill, as re-introduced by Mr. Love, any pecuniary interest; and any person not provides as follows :disqualified by this Act from being elected such 1. This Act shall not apply to the business lord mayor, alderman, common councilman, or of a banker. auditor, shall be capable of being so elected. 2. The term “trader” shall include any

34. Any alderman or common councilman, person, partnership, company, or body corand any person who under this Act might be porate carrying on any trade, business, or unelected to be an alderman or common council- dertaking. man of the city, shall be capable of being elected 3. No person making a loan to any trader to be a sheriff thereof.

shall be deemed to be a partner of or to be sub35. Lord mayor, sheriffs, aldermen, common ject to any liabilities incurred by such trader councilmen, and auditors not to act until they by reason only that he receives as a compensahave made a declaration of acceptance of office, tion for such loan a portion of the profits made and, where qualified by estate, of such quali- in any business carried on by such trader. fication.

4. No person, being an agent or servant or 36. Every person not accepting office to pay person in the employ of any trader, shall be a fine of 1001.

deemed to be a partner of or to be subject to 37. If any person holding the office of lord any liabilities incurred by such trader, by reamayor, alderman, or common councilman for son only that he receives as a remuneration for the city declare himself or be declared bank- his services as such agent or servant a portion rupt or insolvent, or take or apply to take the of the profits made in any business carried on benefit of or become subject to any Act for the by such trader. relief of insolvent debtors, or make any com- 5. No person receiving by way of annuity or position with his creditors, or altogether absent otherwise any portion of the profits made by himself from his duty for the period hereinafter- any trader in his business shall by reason only mentioned, (that is to say,) for two months of such receipt be deemed to be a partner of or consecutively in the case of the lord mayor, or to be subject to any liabilities incurred by such for six months consecutively in the case of an trader. alderman or common councilman, unless prevented by illness or other reasonable cause, AMENDED JOINT - STOCK COM. then and in every or any such case such per

PANIES BILL, son shall thereupon immediately become disqualified, and shall cease to hold the office of

This Bill has been reprinted. The followlord mayor, alderman, or common councilman, as the case may be, and the common councii ing clauses marked A to N were added in shall thereupon forthwith adjudge the said Committee, and the clauses marked 0 to Q office vacant; but any person becoming dis- on re-commitment. qualified and ceasing to hold such office by

37. A. If any company registered under this reason of having made any composition with Act carries on business when the number of his creditors shall, on payment of his debts in its shareholders is less than seven, every perfull, be capable (if otherwise qualified) of being son who is a shareholder in such company re-elected to such office; and any Act done during the time that it so carries on business by any such lord mayor, alderman, or common shall be severally liable for the payment of the councilman so becoming disqualified as afore- whole debts of the company contracted during said, previously to his office being adjudged such time, and may be sued for the same withvacant as aforesaid, shall have the same force out joining in the action or suit any other and validity as if such lord mayor, alderman, shareholder. or common councilman had not been disquali. 43. B. In any bond and disposition in secufied; and any event or Act which under this rity made according to the Scotch Law by any enactment would disqualify any person from company registered under this Act there shall continuing to hold the office of lord mayor, be implied the following obligations and underalderman, or common councilman shall dis- takings (unless words expressly negativing qualify any person who has held the office of such implication are contained therein); that lord mayor, from continuing a justice of the is to say, an obligation on the part of the com, peace under this Act after such event or Act. 38. Penalty of 50l. on persons acting who interest thereon, at the time and rate therein

pany to pay the money thereby secured, and are disqualified. 39. Penalty of 501. on ward clerks and town power to convey the property declared to be

mentioned ; an undertaking that they have clerks for neglect to comply with the provisions conveyed to the heritable creditor free from in. of the Act. 40. Accounts of receipts and disbursements execute, at the expense of the company, in fa

cumbrances; and an obligation to make and to be kept, audited, and published.

vour of the heritable creditor, or any person 41. Accounts to be transmitted to Secretary claiming through, under, or in trust for him, of State, and abstract laid before Parliament.

any further deed necessary to give effect and [To be continued.]

validity to the security; and if a power of sale

Amended Joint-Stock Companies Bill.

459 is thereby given, such power shall imply an au- making rules of practice as is herein-before thority to sell by public auction or private con- given to the Lord Chancellor of Great Britaiu tract, altogether or in parcels, and to make, as regards England ; but until such rules are rescind, or vary contracts of sale or re-sale, made the general practice of the Court of Seswithout being liable for loss, and also an au- sion in suits pending in such Court shall, so thority to give effectual receipts for purchase far as the same is applicable, and not inconmoneys, and such bond and disposition in ee- sistent with this Act, apply to all proceedings curity may be in the form marked H. in the for winding-up a company, and official liquiSchedule hereto, or as near thereto as circum- dators shall in all respects be considered as stances admit, and shall be registered in the possessing the same powers as any trustee on general or particular or burgh register of a bankrupt estate. sasines, as the case may be, and being so re- 92. P.' The Vice-Warden of the Stannaries gistered shall be equivalent to a bond and dis- may from time to time, with the approval of the position in security in ordinary form.

Lord Chancellor of Great Britain, make such 45. C. In any disposition of heritable pro- general rules as may be necessary or expedient perty granted according to Scotch Law by any for the purpose of carrying into execution the ocmpany registered under this Act there shall be powers conferred by this Act upon the Court implied, unless words expressly excluding such of the said Vice-Warden; but, subject to such implication are contained therein, an obligation rules, the general practice of the said Court in of absolute warrandice, and an obligation to cases within the jurisdiction thereof shall, so complete the company's title at its own expense far as the same is applicable, and not inconso far as necessary to validate or give full sistent with this Act, apply to all proceedings effect to such disposition, and an obligation to under this Act; and any order made by the grant also at its own expense any further deeds Vice-Warden of the Stannaries may be enforced which may be necessary to render such dis- in the same manner in which orders made in position effectual.

proceedings within the ordinary jurisdiction of 74. O. Any such conveyance, mortgage, de- such Court are enforced; and for the purpose livery of goods, payment, execution, or other of jurisdiction any company engaged in workact relating to property, as would, if made or ing in any mine within and subject to the jurisdone by or against any individual trader, be diction of the Stannaries shall be deemed to be deemed in the event of his bankruptcy to have resident within the Stannaries, and at the place been made or done by way of fraudulent pre- where such mine is situate. ference to any creditor of such trader, shall, if 93. H. Any two Commissioners of Bankmade or done, by or against any company re- ruptcy appointed by the Lord Chancellor of gistered under this Act, be deemed, in the Great Britain may, as respects the Courts of event of an order being made for winding-up Bankruptcy in England, and the Commissioners such company, to have been inade or done by of Bankrupt in Ireland may, as respects the way of fraudulent preference of some creditor Courts of Bankruptcy in Ireland, make rules of such company, and shall be invalid accord- as they respectively from time to time, but subingly; and for the purposes of this section the ject to the approval of the Lord Chancellors of presentation of a petition for winding-up a Great Britain and Ireland respectively, think company shall be deemed to correspond with fit, for the purpose of regulating the proceedthe filing of a petition for adjudication of bank- ings in such Courts for winding-up companies, ruptcy in the case of an individual trader. but, subject to such rules, the general practice

80. E. As soon as the creditors are satisfied, of the Courts of Bankruptcy in England and the Court shall proceed to adjust the rights of Ireland respectively, in cases within the ordithe contributories amongst themselves; and to nary jurisdiction of such Courts, shall, so far distribute any surplus that may remain amongst as the same is applicable, and not inconsistent the parties entitled thereto, and for the pur- with this Act, apply to all proceedings under poses of such adjustment it may make calls on this Act, and any order made by any Commisthe contributories to the extent of their liability sioner of Bankruptcy in any such proceedings for payment of such sums as it deems neces- may be enforced in the same manner in which sary; and it may, in making a call, take into orders made in proceedings within the ordinary consideration the probability that some of the jurisdiction of such Court are enforced. contributories upon whom the same is made 97. I. Notice of any special resolution to may partly or wholly fail to pay their respective wind up a company voluntarily shall be given, portion of the same.

as respects companies registered in England in 81. F. The Court may make such order as to the London Gazette, and as respects companies the priority and payment out of the estate of registered in Scotland in the Edinburgh Gazette, the company of the costs, charges, and ex. and as respects companies registered in Ireland penses incurred in winding-up any company in the Dublin Gazette. as it thinks just.

99. Q. The voluntary winding-up of a com91. G. In Scotland the Court of Session may, pany shall not prejudice the right of any crediby Act of Sederunt, exercise the same power of tor of such company to institute proceedings for

the purpose of having the same wound-up by 72. D. Power of Court of Chancery to re- the Court. mit winding-up to the district Court of Bank. 106. K. The correctness of the statements ruptcy where compnay's office situate.

contained in any document delivered to the re

1

460 Bankers' DraftsBill.-Simple Contract Debts' Bill.- Mercantile Law Amendment. gistrar shall be verified by a declaration of the SPECIALTY AND SIMPLE CON. directors of the company delivering the same, TRACT DEBTS' BILL. or any two of them, or of any two other principal officers of the company, made in pursuance Debts by specialty shall not be entitled to of the Act passed in the 6 Wm. 4, c. 62; but priority in the administration of the estates of no fees shall be charged in respect of the re- persons dying after January 1, 1857. Proviso, gistration anew of any company completely saving lien or charge of creditor on land, or registered under the said Act of the 8 Vict. c. landlord's right of distress for rent, or any 110, in cases where the liability of the share other security held by creditor ; s. 1. holders is not intended to be limited, or where Actions of debt for rent upon any indenture such company has already obtained a certificate of demise, of covenant, or debt upon any bond of complete registration with limited liability. or other specialty, and of debt or sci. fa. upon

107. L. Upon compliance with the foregoing any recognizance, shall be brought within requisitions the registrar of joint-stock com- three years after end of present Session, or panies shall certify under his hand that the within six years after the cause of such actions company so applying for registration anew is or suits ; s. 2. incorporated as a company under this Act, and

The Act not to extend to Scotland; s. 3. in the case of a limited company, that it is limited, and thereupon all provisions contained in any deed of settlement, Act of Parliament, MERCANTILE LAW (SCOTLAND) Royal Charter, or letters patent, or other in

AMENDMENT BILL. strument constituting or regulating the company, shall be deemed to be regulations of the company within the meaning of this Act: and REPORT OF THE SOCIETY OF SOLICITORS all the provisions of this Act shall apply to such

or THE SUPREME COURTS IN SCOTcompany in the same manner in all respects as LAND. if it had been originally incorporated under The Council of the Society of Solicitors this Act; subject nevertheless to the reserva- of the Supreme Courts in Scotland, have tions hereinafter contained with respect to the taken into consideration the Bill of the existing rights of creditors and other persons; Lord Chancellor, for amending the Laws of and subject to this proviso, that except in so far as it is hereinafter permitted, no company

Scotland affecting Trade and Commerce, constituted by Act of Parliament, Royal Char- and have printed a very able Report on the ter, or letters patent, shall have power, by several clauses of the Bill. We propose to special resolution, or otherwise to alter any of make some extracts therefrom on the more the provisions contained in such Act of Parlia- important provisions, particularly such as ment, charter, or letters patent.

bear upon the Laws of England, or the dif108. M. Any company may, for the purpose ferences which exist between them and the of obtaining registration with limited liability, Laws of Scotland. change its name by adding thereto the word “limited,” or do any other Act that may be “Clause 1 provides that, where goods have necessary.

been sold, but not delivered to the purchaser, 109. Ń. The certificate of incorporation given and allowed to remain in the custody, posses. to any existing company, in pursuance of this sion, or control of the seller, it shall not be Act, shall be conclusive evidence that all the re- competent'to attach the same as the property quisitions of this Act in respect of registration of the seller, ‘to the effect of preventing the anew have been complied with, and the date purchaser or others in his right from enforcing of such certificate snall be deemed to be the delivery of the same.' And the right of the date at which the company is incorporated purchaser to demand delivery of such goods under this Act.

shall be attachable by or transferable to the

creditors of the purchaser,' subject to a right AMENDED BANKERS' DRAFTS"

of retention for payment of the price, or per

formance of the contract of sale. BILL.

“This clause will produce the following Tuis Bill, as amended in Committee, pro

changes in the law of Scotland :poses to enact, that in every case where a draft will transfer the property from the seller to the

“1. The completion of the contract of sale on any banker made payable to bearer or to buyer, without delivery. order on demand bears across its face an addi- 22. As a consequence, the creditors of the tion, in written or stamped letters, of the name seller cannot attach the undelivered property, of any banker, or of the words "and company," in full or abbreviated, either of such additions attach it.

and the creditors of the buyer may competently shall have the force of a direction to the bankers upon whom such draft is made that third party by the words, or others in his

.“ 3. The buyer's right is transferable to a the same is to be paid only to or through some right, and although this is not an alteration banker, and the same shall be payable only to on the present law, a consequence which flows or through some banker.

from it is an alteration, and will be immediately noticed.

Mercantile Law (Scotland) Amendment Bill.

461 "“ It will be observed that the condition of owner, but the same have not been delivered demanding delivery is payment of the price of to the purchaser, and have been allowed to rethe thing sold, or performance of the specific main in the custody of the seller for delivery, contract.

it shall not be competent,' &c. Clause 2 provides that a seller shall not be So, if it should be established that the entitled to a right of retention generally against seller was allowed to retain the custody of the a second purchaser, or others in his right; goods for any other purpose than that of improvided that nothing herein contained shall plementing the contract of sale by delivery, the affect or prejudice any right of retention over effect of the clause would not follow. such goods competent to the original seller, ex- “The deletion of the words possession or cept as between him and such second pur control' is suggested, because possession and chaser, or any such right of retention arising control are the badges of property in movefrom express contract with the original pur ables ; and it would be anomalous to recogchaser;' provided also, that the original seller nise these public tests of ownership in one may attach the goods in his own hands by ar- person, and the real right of the property in restment or poinding..

another,—and these two actually holding adThis clause is intended to obviate the hard- verse interests. ship supposed to have arisen in the recent “ It is thought that a question may arise cases of Melrose and M'Naughton.

under Clause 1, whether it does not abrogate “The Council have to express their regret the landlord's right of hypothec, by placing that the Royal Commissioners did not see fit to him on a level with any creditor of the seller. recominend for adoption in England, the prin- This is plainly not intended, and it is respectciples of the law of Scotland in relation to the fully recommended that an addition should be effect of the contract of sale on ownership. made to the clause, declaring that the landThese principles enter deeply into the theory lord's right of hypothec shall not be affected and practice of our law, not only in relation to by the enactment. moveable property, but to transactions affecting “It appears that the effect of the enactment heritable property. The essential distinction contained in Clause 2 is not intended to be between the titulus, and modus, transferendi carried farther than to save a baná fide subdominii, lies at the root of the differences in vendee from the risk of liability for a general principle and effect between our law and that balance due by the first vendee to the original of England. The principles of the law of Scot- vendor. This is distinctly stated in the Report land are more simple and scientific than the of the Commissioners. It follows, therefore, special rules of the English law, and produce that the right of retention for a general balno jarring effects in their operation; and they ance would continue to be competent to the have been approved of by a large majority of original seller in any question with the original the public bodies who have returned replies purchaser, or his creditots. At least, from the upon the points of difference. It would there. terms of the Report, the Council expected to fore have given the Council greater satisfaction find the proposed enactment so limited. The to have reported that the rules of the Scotch concluding part of the Report on this point is law had been recommended by the Royal Com- as follows :- What we have suggested ismissioners.

not that these principles in the law of Scot“On the other hand, the Council cannot lay land should be abolished or changed, for they out of view, that the trade of Scotland bears a are extensively interwoven with other departsmall proportion to the trade of the United ments of the law of that country, the consideKingdom, and a much smaller proportion to ration of which does not fall within the scope the trade of Europe and America; and that of our commission, but merely—that their conthe law of America, France, and Holland is sequences should not be pushed so far as to the same as the law of England and Ireland. expose a bona fide sub-vendee, in the circum

“Presuming, therefore, that the expediency stances under consideration, to the risk of liaof the proposed alterations has been establish- bility for such extraneous claims.' ed, the Council beg to offer the following ob- “ It humbly occurs to the Council that such servations upon the first and second clauses of a limitation of the proposed alteration is expethe Bill :

dient, upon grounds, which will be obvious, One of the dangers to be apprehended arising out of the effect produced by bankfrom the effects of Clause 1, is, that goods, ruptcy-in reducing opposing claims, whether after being purchased, may be allowed to re- liquid or illiquid, present or future, into one main for an indefinite time with the seller, may accounting, valuing securities, and ascertainbe made a source of credit with the public in ing one balance due by, or due to, the bankrupt; his favour, and the subject of second contracts. and it is only in cases of bankruptcy that the Perhaps no perfect remedy can be provided right of retention for general balance can be of against this, but, it is thought, the risk would any benefit to the seller against the purchaser be abated by the words ‘possession or control and his creditors. being struck out of the first part of the clause, “But it is thought that Clauses 1 and 2 of and after the word seller'inserting the words the Bill taken together, take away the right of * for delivery.' The clause would then read retention, not only with the sub-vendee, but thus :

with the creditors of the first vendee. Clause "Where goods have been sold by the 1 provides that the right of the purchaser to

462

Mercantile Law (Scotland) Amendment Bill. demand delivery shall be attachable by, or equity. Parties dealing in bona fide with the transferable to, the creditors of the purchaser ;' seller, as ostensible owner, should be protected. and the only condition is, payment of the price, The English rule places them upon the same or such proportion thereof as may remain un- footing with parties purchasing stolen goods.” paid, or performance of the contract of sale.

To the alterations proposed by clauses 3 In the face of this enactment the seller could not maintain a right of retention for general to 6 inclusive, no objection appears to be balance against the purchaser or his creditors, made. unless such right was a condition of the con- " Clause 7. The discharge of one cotract. Clause" 2 contains the proviso, that cautioner without the consent of the other nothing herein contained shall affect or preju- cautioners, to discharge such co-cautioners. dice any right of retention over such goods “This seems to be the strict rule of the competent to the original seller, except as be- English law. The Council were formerly of tween him and such second purchaser, or any opinion that the rule of the law of Scotland, such right of retention arising from express which only relieves the co-cautioners to the contract with the original purchaser.'. It is not extent of the share of the debt for which the stated in what circumstances the right would cautioner discharged was liable, was more equibe otherwise competent,--the only instances are table. Mr. Anderson, Q.C., in his separate in a question with the first purchaser himself, note, adopts the same view. The Report puts or with his creditors doing diligence, or with a the equity strongly the other way, and, on retrustee on his sequestrated estate. But the consideration, the Council think the clause terms of Clause 1 seem to settle the question should be approved of. It should be carefully of competency with these parties against the observed, however, that the clause is strictly right of the original seller.

limited to cautionary obligations, and does not “ The provision making it competent to the apply to joint obligations. original seller to attach the goods in his own * In the event of the bankruptcy of one cohands, by arrestment or poinding, at any time cautioner, the creditor is, by the existing Bankprior to the intimation of the sub-sale, is in- rupt Act, entitled to consent to the discharge of tended for the purpose of protecting him the bankrupt without injuring his claim against against such sub-sale only. This appears from the solvent cautioner. This right should be the Report; but suppose the original seller reserved, otherwise it might be held to be redoes use arrestment in his own hands before pealed by this clause.” intimation of a sub-sale, and the sub-purchaser also arrests upon a dependence laid upon his

Then the three succeeding clauses in the sub-contract, and takes steps to make his Bill, 8, 9, and 10, are approved. author bankrupt within 60 days, which he may “Clause 11. Where any inland bill of exeasily accomplish, he would be entitled to change is dishonoured by non-acceptance, or claim a pari passu ranking upon the value of non-payment, or promissory note by nonthe goods with the original seller. The dili- payment, 'it shall not be necessary that a nogence of poinding is liable to the same compe- tarial protest shall be taken on such bill of tition. The protection afforded by these dili- exchange or .promissory note in order to pregences is therefore not complete, but perhaps serve recourse against the drawer or indorser it is the best that can be devised.

of such bill or promissory note respectively, “ The Council refer (but with hesitation, as but it shall be sufficient to prove such presentthey may have been under the consideration of ment and dishonour to the effect of preserving the framers of the Bill) to the Warehousing recourse as aforesaid by other competent eviActs and the Excise Acts, which contain spe- dence, either written or parole, provided that cial enactments as to the transfer of goods sold nothing herein contained shall be taken to while in bond, namely, an intimation to the affect the necessity for a notarial protest in warehouse-keeper, and the transfer entered order to entitle the holder to proceed with sumin the warehouse books. This observation is mary diligence thereon.' made, as it may admit of doubt whether "In the reply to the Royal Commissioners, Clauses 1 and 2 are in all respects aptly the Council disapproved of any alteration upon framed, to meet the case of goods sold while the existing law. It is not improbable that a in bond.

misapprehension has arisen as to the practice “The clauses make no provision for the case in Scotland. The language of the Report and of goods sold and allowed to remain with the this clause leads to the opinion that a notarial seller, who, after such sale, sells and delivers instrument of protest is actually extended on the goods to another party,-Whether the first the last day of grace. This is not the case, as buyer's only remedy is against the seller for every person in trade knows. If the bill, or breach of contract, or whether he is entitled to note, be dishonoured, it is marked by the novindicate the goods, or recover damages, from tary, but nothing more is done until diligence, the second buyer? It is stated in Mr. Ander- or action, has to be prosecuted, when the inson's note that the latter is the remedy allowed strument is extended, and produced in evidence in England. If it be intended to make this the the dishonour. The ground of objection is, rule in Scotland, as an inference from the al- that unlees the present practice 'is strictly adtered law now proposed, the Council respect- hered to, the remedy of summary diligence will fully remonstrate against it as contrary to all in a very large number of cases be lost. To

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